In re N.Y. Times Co.
| Decision Date | 23 February 2023 |
| Docket Number | Miscellaneous Action 22-100 (BAH),22-104 |
| Parties | IN RE APPLICATION OF THE NEW YORK TIMES COMPANY AND CHARLIE SAVAGE FOR ACCESS TO CERTAIN DOCKETS, ORDERS, LEGAL BRIEFING, AND ARGUMENT TRANSCRIPTS ANCILLARY TO JANUARY 6 GRAND JURY PROCEEDINGS |
| Court | U.S. District Court — District of Columbia |
REDACTED VERSION
The sealing of judicial decisions and ancillary judicial records relied on to resolve matters pending before the Court is anathema, "reflecting] the antipathy of a democratic country to the notion of 'secret law,' inaccessible to those who are governed by that law." In re Leopold to Unseal Certain Elec. Surveillance Applications & Orders (''Leopold"), 964 F.3d 121, 127 (D.C. Cir. 2020). Indeed, "the issuance of public opinions is core to the transparency of the court's decisionmaking process," id. at 1128 (internal citation omitted), and, as such, is "a fundamental norm of our judicial system: that judges' decisions and their rationales must be available to the public," id. at 1130. Public access to judicial records is '"important to maintaining the integrity and legitimacy of an independent Judicial Branch,'" id. at 1127 (quoting MetLife, Inc. v. Fin Stability Oversight Council, 865 F.3d 661, 663 (D.C Cir. 2017)), and serves "to produce an informed and enlightened public opinion" as well as "to safeguard against any attempt to employ our courts as instruments of persecution, to promote the search for truth and to assure confidence injudicial remedies," id. The courts have long recognized that the press plays a critical role in facilitating public access and acknowledged that "[o]ne of the demands of a democratic society is that the public should know what goes on in courts by being told by the press what happens there, to the end that the public may judge whether our system of criminal justice is fair and right." Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 573 n.9 (1980) ().
At the same time, applicable procedural rules and binding precedent require that public access to judicial records must give way in the face of compelling interests requiring that grand jury material remain out of public view, perhaps forever, when unsealing would reveal "a matter occurring before the grand jury," Fed. R. Crim. P. 6(e)(2)(B), except in limited, enumerated circumstances, id. at 6(e)(3)(A)-(E). See Leopold, 964 F.3d at 1130 ( that Rule 6(e) "expressly directs secrecy as the default position, and thus displaces the common-law right of access" and "specifies a standard for sealing ... 'as long as necessary to prevent the unauthorized disclosure of a matter occurring before the grand jury.'"); see also McKeever v. Barr, 920 F.3d 842 (D.C. Cir. 2019). Rule 6(e), however, provides no definition of the critical phrase "matter occurring before the grand jury," nor much guidance on the scope of information cloaked by grand jury secrecy, while precedential rulings make clear that scope is far broader than merely transcripts of what actually takes place during a grand jury session.
The pending matter highlights the tension that lies between the important policies underlying grand jury secrecy, as currently codified in Rule 6(e), and "the always strong presumption in favor of public access to judicial proceedings." United States v. Hubbard, 650 F.2d 293, 317 (D.C. Cir. 1980). The New York Times, its reporter Charlie Savage, Politico, and its reporter Kyle Cheney ("petitioners") have applied for an order authorizing public release of dockets, court opinions and orders, parties' legal briefings, and any hearing transcripts in a specific sealed docket, Case No. 22-gj-25, regarding what petitioners define as "former President Trump's privilege challenge to the Jan. 6 grand jury investigation." See Pets. Politico and Kyle Cheney's Application for Order Allowing Disclosure of All Documents Related to the January 6 Grand Jury Investigation ( ) at 1, ECF No. 1, No. 22-mc-104; see also Pets. The New York Times and Charlie Savage's Application for Access to Certain Dockets, Orders, Legal Briefing and Argument Transcripts Ancillary to January 6 Grand Jury Proceedings ( ) at 1, ECF No. 1 (describing the materials as those "regarding the scope of executive privilege invoked by former President Donald J. Trump or former Trump Administration officials").
Petitioners argue that, despite the secrecy required for grand jury matters by Federal Rule of Criminal Procedure 6(e)(2), the significant public interest in the grand jury's current investigation outweighs the need for continued secrecy. See Pets. The New York Times and Charlie Savage's Mem. in Supp. of Application for Access to Certain Dockets, Orders, Legal Briefing and Argument Transcripts Ancillary to January 6 Grand Jury Proceedings ( ) at 3, ECF No. 1. The government, in a sealed filing, opposes any unsealing of any filings made in the docket for Case No. 22-gj-25, arguing, inter alia, that "the government has not confirmed the existence of the investigation, and other parties or witnesses have not admitted to acknowledge[ed] these matters ongoing before the grand jury," and that no unsealing is authorized under Rule 6(e). Gov't's Mem. in Opp'n NYT Appl. (Sealed) ("Gov't's Opp'n (SEALED)") at 2, ECF No. 10.[1]
As explained below, the docket and filings requested by petitioners concern litigation of matters presently before the grand jury and central to its ongoing investigation. Accordingly, Rule 6(e) does not permit such disclosure, at least for now and perhaps forever, and so petitioners' applications are denied.
The relevant factual and procedural background is summarized below.
Following the attack on the U.S. Capitol on January 6, 2021, the press reported on the numerous criminal investigations into those who attacked the U.S. Capitol and who proposed "the creation of alternate slates of pro-Trump electors seeking to overturn Joseph R. Biden Jr.'s victory in the 2020 election," many of whom were lawyers for former president Donald J. Trump. NYT Pets.' Mem. at 3-4.[2] According to those press reports, the latter investigations involved grand jury subpoenas for testimony issued to Marc Short, former vice president Michael R. Pence's former chief-of-staff, Greg Jacob, former Vice President Pence's counsel, and other members of the Trump White House. Id. at 4.[3] Later reporting stated that "[e]xecutive privilege took center stage" in the government's investigation after the former president invoked the privilege to bar subpoenaed witnesses from testifying to communications with him. Id. at 5- 6.[4] Those disputes reportedly culminated in "a sealed decision on the scope of the privilege." Id. at 6.[5]
On October 18, 2022, Politico and Kyle Cheney, Senior Legal Affairs Reporter for Politico, submitted by letter an application to unseal all documents related to, what they describe as "the ongoing grand jury proceedings stemming from the January 6, 2021 attack on the Capitol." See Politico Pets.' App. at 1. Specifically, they "seek the public disclosure" of the following from Case No. 22-gj-25: "1) Former president Trump's June 10, 2022 action (and any associated briefs) related to two grand jury subpoenas: 22-GJ-060991378 and 22-GJ-06991380; 2) Any response by the government to this challenge; 3) Any additional replies by former president Trump; and 4) The court's September 28, 2022 order adjudicating this challenge." Id. As grounds for their unsealing request, petitioners argue that the ruling in this case is "historic" and "bears on the ability of former presidents to control, and even silence, ex-advisers in matters of urgent national significance," thus justifying disclosure. Id. They advocate for unsealing of these records "with redactions as needed to protect the privacy interests of named individuals and to address the Justice Department's criminal investigative prerogatives," which are separate and distinct, they argue, from "the court's reasoning and breadth of its September 28, 2022 ruling." Id.
On October 25, 2022, the New York Times and journalist Charlie Savage filed a similar application for access to materials "ancillary" to grand jury proceedings involving former President Trump. See NYT Pets.' App. Specifically, these petitioners request access to "redacted versions of any dockets, court opinions or orders, legal briefing, and argument transcripts ancillary to the grand jury investigation, including such materials regarding the scope of executive privilege invoked by former President Donald J. Trump or former Trump Administration officials," NYT Pets.' Mem. at 3, to reveal "legal arguments about the proper scope of the executive privilege," which are "of tremendous public and historical importance," id. at 8. To support their request, these petitioners argue that the intense public interest present here, where "a former president lacks the support of a current president" and the "novel constitutional issues" raised incident to "a presidential election, a matter of profound national moment," merit public disclosure, even with redactions. Id.
After reviewing both applications, on October 26, 2022, this Court ordered that a new miscellaneous case number and separate docket be assigned to each application, consolidated the cases, and issued a scheduling order for briefing. See Min. Order (Oct. 26, 2022). The government opposed petitioners' applications on November 15, 2022 which the Court permitted to be...
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